Obama faces new questions on drones

The leak of a secret Justice Department memo on using drones to kill U.S. citizens threw kerosene onto a simmering legal debate — but with most lawmakers showing no appetite to confront President Barack Obama publicly over the strikes, the politics of the issue remain frozen.

Still, there’s little doubt the “white paper” made its way to NBC News in an effort to draw more attention to drone questions just as Obama counterterrorism adviser John Brennan heads to his CIA director confirmation hearing Thursday.

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POLITICO LIVE: Drones & Brennan’s confirmation

Despite outrage and professions of shock from some liberal commentators, there’s nothing really stunning in the memo. Most of the conclusions about the scope of the government’s power against alleged terrorists have been outlined by senior Obama administration officials in speeches last year that began to roll back some of the secrecy surrounding U.S. drone operations abroad.

The newly disclosed memo does add a few nuances that some find disturbing, but most up in arms over the paper are those already aghast at Obama’s policy. In many ways, they’re angry because the memo — as they expected — doesn’t provide much legal justification to back up its most controversial points.

Obama aides were scrambling Tuesday to determine precisely which memo had leaked and to figure out whether to denounce the leak — or embrace it. They eventually settled on a kind of awkward adoption of the disclosure, even though it seems likely to complicate Brennan’s upcoming hearing and lead to unwelcome comparisons with the Bush administration.

Here’s POLITICO’s guide to the memo and its impact:

Pushing the legal envelope

Legal experts on both sides of the debate immediately called two points in the memo the most dubious conclusions: the expansive view of what constitutes an imminent threat and a broad interpretation of when it’s “not feasible” to try to capture a terrorist suspect.

The white paper argues for “a broader concept of imminence” that allows for the use of deadly force when someone is “continually plotting attacks” against the U.S. even if there’s no specific information about a specific planned attack. A suspect’s recent involvement in plotting is enough, the memo concludes, as long as “there is no evidence suggesting he has renounced or abandoned such activities.”

An effort to capture a suspect is “not feasible” the white paper concludes, when it’s tactically feasible but another nation won’t allow it, or when a “window of opportunity” allows for a drone strike but not a capture operation.

“You can’t say ‘imminent’ and create a kill list of people who are on that list for years at a time. That is not imminent,” said C. Dixon Osburn of Human Rights First. “That’s not what imminence is supposed to mean.”

Asked Tuesday if the “white paper” redefines the notion of imminent threat to mean an ongoing threat, Attorney General Eric Holder defended the administration’s public rhetoric as “accurate.” But he refused to explain the terms in further detail.

“Some of these things are fact-based. I can’t necessarily get into the weeds or kind of parse these things,” Holder told reporters at a Justice Department news conference. “You can’t, I think, examine these terms without reference to the facts,” he said, adding that he could elaborate only in “a classified setting.”

Other experts said the Obama Administration’s interpretations, while edgy, were plausible and perhaps even correct.